Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-19
Court OF appeals.

he State; appeal from Houston. Where
is evident that the alleged absent testi.
1ony is probably untrue, the court did
,ot err IN overruling the motion for con.
inuance. The testimony was amply sui
,cient, snd the charge full and fair. No
sTersible error. Affirmed. Wilson, J
Dsvis Pierce vs.. John Carter; appeal
rom Robertson. In this case. though
ne evidence is conflicting, there is am
Me proof to sustain the judgment of the
1.OurE below, and in the absence Of any
ln,terial error We will not disturb the
I5dgment. No material error. Affirmed.
burt, j.
4 T. S. Gregory vs.. the State;
lppesl from Lamar. Conviction for pass
lug forged instrument. Where it clearly
Ippesrs that the errors of the court below,
h any, are not material, and that the
fghts of appellant has not been injured
hereby, there being sufficient proof to
Fustain the conviction, this court will not
feverse. No fundamental error. Affirmed.
Wilson, j.
John Sullivan vs.. the State; appeal from
ssslns, conviction for theft. Purchase is
sn affirmative defense, and ought to be
Imported by proof to entitle the party
10 the proper chsrge. Evidence and
.isrge sufficient. No errors. Affirmed.
Wilson, j.
Wyatt Oldham VS.. the State; appeal
i rom Houston. There are no bills of ex-
:sptiop, and the testimony though some
s shat conflicting is amply sufficient to
lustain the conviction. There was no
.rrog prejudicial to defendant in the court
below. and We will not disturb the judg.
nent. All med. Wilson, J.
A. StoKely vs.. the State; appeal from
Fsnnin. One Savage loaned appellant
5 bis mare in Honey Grove to ride to with
{ in short distance of Savage's house in
Delta county. Before appellant arrived
St the destination, for which the mare
hsd been loaned him to ride, he traded
her to another party, telling him that he
hsd bought the said mare and that she
vas his property. Held: To constitute
theft the taking must be wrongful, unless
possession of the property WAS obtained
By some false preteXt, or where the tax
| ing is accompanied with the intent TO de-
| prive the owneri of the value Of the
property. We are of opinion that the
evidence does not support the verdict.
Reversed and remsnded. Hurt, j.
B. A Higginbotham vs.. the State; ap-
pssl from Rains. Conviction for perjury.
On the trial of this cause the
state read in evidence the com
plsnt in writing and under oath
made by one Dykes charging
]. W. Bryant with forgery and upon
which the prosecution against Bryant, in
which prosecution the alleged perjury
wss committed, was founded, and also
the testimony Of said Dykes given on the
trial OF said complaint and reduced TO
Writing before the examining court.
Held: Having admitted this extraneous
Evidence for the purpose Of proving the
alleged false statements made by the
appellant in the Judicial proceeding, 1t
VAS the imperative duty of the court to
Instruct the jury that such testimony
could not be considered by them IN de-
teIminiDg the main issue, which WAS the
wilful and deliberate falsity of defend
ants statements, but could only be con-
sidered for the specific purposes above
usmed. The court failed to do this.
reversed and remauded. Wilson, j.
rs. John Holden; appeal from Bowie.
TRis suit was Instituted in the Justice
court for $500, the value Of dog killed
by APPELLANTS train. Appellant appealed
the case to the County court, and
there moved to transfer the cause to
he District court on the ground that,
pending the appeal, the justice who tried
he case having been elected County
Judge, was disqualified by reason Of be-
ing interested in the costs in Justice
court, same not having been paid. Mo-
ION to transfer overruled. Held: No
error in everything the motion. W. &
NJ 1868; % Tex, sos; 2S Tex, 112. APP
peilsat contends that the cog being killed
N Arkansas the Texas statute with ref
efence to fencing against stock is not ep-
pllcsble. Held: This objection fails,
because appellee does not rely upon the
statue to authorize recovery. Appel
ant also contends that this action is
gwen by statute only, and there being no
statute giving such right Of action, appel
lee has no remedy. Held: That the
owner OF dog may maintain an action
Is.nst one who kills or Injuries it is too
well settled for discussion. 1S0 H., 2l1;
IOs Mass, 273; 81 Ala $50 This IS
acommon law action and may BE- tried in
any court having jurisdiction Of the
amount IN controversy and where the de-
Iendant could be properly served The
evidence sustslns the judgment and there
vas no error. Affirmed. Hurt, J.
Cessrio Cortez VS. the State; appeal
nom Webb. The principle upon which
1ae acts and declarations of one conspi
tator is admitted in the evidence against
ne person prosecuted, is that by the act
VI conspiracy together the consplrators
ave Jointly assumed to themselves, as q
sOay, the attribute of individuality, so
iH IS regards the prosecution Of the
eohmon design, thus rendering whatever
oone or said by sny one in furtherance
nat design, part of the res sgesi8,
saa therefore the act of all. 2. Only the
aeclarations which are nade during tn e
.onspiracy, and in furtberance of its OBJ
!ec., are admissible. Declarations which
ne merely variations of fact are to be re-
!'cIeo. 8. The general rule is that to be
;+uhaissiole the conspiracy must be pend
us ana the acfs or declarations must be
= futtherance of the conspiracy. Re-
'e1Sed and remsndei. Hurt, j.
m K. Ormsn vs.. the State; appeal from
@cLennen. l. 1t wss error to charge
w, a!'a respect to tie character Of self de-
tsaSe defined in article 572 P.
~, because the facts OF the case
va not demand and warrant
o. 81 hut a